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Faculty Scholarship Digest

May 2012

On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise.

Articles

In this penetrating article, co-authored with outstanding professors from the business schools at Oxford and the University of Virginia, Steve takes a hard look at changes in the investment banking business and their implications for regulation through the lens of the ABACUS case, in which the SEC charged Goldman Sachs with securities fraud for their actions related to a 2007 collateralized mortgage-backed securities transaction. Goldman’s stock dropped 13% ($10 billion in market valuation) the day the SEC announced the complaint, and Goldman settled in July 2010, agreeing to pay more than $550 million. After describing the highly complex ABACUS transaction in some detail, the article studies it contextually, first in light of then current investment banking activities and customer expectations, and then in light of the historical evolution of the investment bank.

The investment bank business has changed substantially in recent decades, from a “trust-based business,” in which the bank’s reputation was a critical item and quality was difficult to measure, to one with a substantial (and growing) transactional business: “the center of mass for the modern investment bank is now in the dealing room.” In this latter environment, where “the roles of trust and reputation have been massively attenuated,” Steve and his co-authors demonstrate that the need for regulatory input through legal formalities is increased, particularly for bright-line legal rules. For the remaining trust-based portion of the business, particularly when investment banks are dealing with sophisticated partners rather than retail investors, the article argues that increased regulation, even with the softer approach of “fiduciary duty,” is likely to be counterproductive—further undermining trust and reputation forces without providing a useful substitute.

This article was drawn from a panel discussion among the authors at a continuing education seminar, covering both fundamental evidence principles and some recent changes to the Federal Rules of Evidence. The authors move smoothly back and forth as they cover such crucial topics as character evidence and hearsay. Debby’s contribution pays particular attention to the state-of-mind and medical-diagnosis exceptions to the rule against hearsay.

In this article, drawn from a continuing education seminar, Debby provides insight on three areas of change in the Federal Rules of Evidence over the previous year. First, on December 1, 2011, a restyled version of the Federal Rules of Evidence took effect. This was the culmination of a five-year effort that sought to make no substantive changes but touched every rule. Debby concludes that the project succeeded in its goal of making the rules more readily comprehensible easier to understand, but notes two places where the goal of no substantive change may not have been met: The exception to the hearsay rule allowing an “Admission by party-opponent” now allows “An opposing party’s statement.” Under the old rule, there was a split in the circuits (apparently not recognized by the revisers) as to whether the rule allowed admission of a statement formally on the same side of the litigation but with an adverse interest (e.g., a co-defendant), and the revision seems to undermine the arguments offered in support of such admissions. A similar issue came with the change to the rule defining when the Federal Rules of Evidence do not apply—the language of the catch-all provision made the list seem exhaustive rather than illustrative, but courts split on which it was (with a majority finding it illustrative), and the new language suggests it is illustrative. Again, this raises the question of substantive change in jurisdictions under the minority approach.

Debby also covers the important 2011 developments in the Court’s new Crawford-based jurisprudence on hearsay, in which its on-going struggle to define the key term “testimonial” remains a gripping saga, full of twists, splits and harsh opinions. A final section examines social media evidence, which has exploded in importance both because of the wealth of social media information and because it is often easily found, indiscrete, compelling and easily admitted into evidence, as a party admission or another hearsay exception. Debby explores some of the ethical questions involved in gathering such evidence (a lawyer cannot lie in making a “friend request” to gather Facebook information, but may she honestly disclose her name and neglect to mention the litigation connection? There is a split of opinion on this point.) and in authenticating social media evidence, which presents some unique challenges absent stipulation.

John B. Quigley, What is the Most Important Issue to American National Security?, 37 WILLIAM MITCHELL L. REV. 5174 (2012).

This issue of the William Mitchell Law Review is devoted to the Journal of the National Security Forum. That forum’s board of editors posed ten questions on national security to a group of national security experts who were free to choose which question(s) to answer. John’s choice is encapsulated in the title of his contribution. Working from an apparent perspective of terrorism as the critical issue, John argues that “[w]hile we can take punitive measures, while we can seek to isolate governments that support terrorists, it is unlikely that these measures alone will suffice. What is needed is a fundamental reassessment of our policies, and a realistic analysis of how these policies come back to haunt us.” In particular, the policies John refers to are those relating to the Israeli/Palestinian struggle, including Israeli settlements and monetary aid to Israel. John argues that the Obama administration has continued the policy of past administrations in many respects in this area and in some cases “tilting even more strongly to Israel.” The legacy of past policies, John argues, aggravates each new step, hence his call for a fundamental reassessment.

The United States is the only country that elects its judges (and at the state level, 90% of judges face some form of elections). While the practice has long been subject to criticism for obvious reasons, Ric notes that “like it or not, judicial elections are here to stay” and sets about trying to improve the election process, rather than eliminate it. Having identified “the biggest problem with judicial elections” as “the ignorance of voters about the candidates,” Ric created the ingenious solution of a website to fill the gap. Visitors to the website take a short quiz to determine their preferences about judges, and then the website uses its database of candidates to make recommendations on whom to vote for. In 2010, the website operated for a month before election day, received 150,000 hits and gave out 6,000 quiz-based sets of recommendations. This article reviews and analyzes that process.

The article identifies two categories of information that might help voters provide meaningful input: the candidates’ background and qualifications (information that in fact is easily available but frequently does little to distinguish competing candidates) and the candidates’ “legal or political philosophy” (which is harder to gather and may be controversial as a tool, but can distinguish candidates). The website uses data from both categories, including “the prior voting record of judicial candidates, categorized by topic” to make recommendations, and Ric expressly defends the implicit assumption of the project: “that elected judges should be treated like politicians, and that voters who select them should be given the same information about the candidates’ views that these voters have in other types of elections.” An interesting by-product of the project is information about what voters say they want (and don’t want) in their judges—from practice experience, to a tendency to side with taxpayers against the government, to willingness to overturn precedent—and to see differences in this regard between Republican and Democratic voters.

Election administration is a part of the Election Law course, Dan writes, that students usually have had direct experience with, unlike the other topics such as drawing district lines, campaign finance and getting on the ballot. As a consequence of the subject’s resulting accessibility, Dan, the co-author of a leading casebook in Election Law, considers election administration “an excellent jumping-off point for introducing the conceptual framework of election law.” In this article, Dan discusses his approach to teaching election administration, starting with the Florida dispute in the 2000 presidential election and the resulting Bush v. Gore and Help America Vote Act. Dan then moves to what Election Law @ Moritz has labeled the “election ecosystem,” the interrelated rules of state law and local practice that still largely govern election administration, including voting technology, voter identification and voter registration. A final section Dan recommends is electoral institutions—who oversees and manages this process. In this portion Dan recommends some comparative law consideration as, from a world-wide perspective, the U.S. approach of having elections administered by directly interested political officials is anomalous. For each of these areas Dan suggests both techniques and supplementary material for addressing the subjects, as well as the value of the coverage and the broader points students may learn.

Books

This bible of criminal law has now educated and assisted generations of law students and law professors. Joshua’s treatment of doctrine and debates, from the common law to contemporary issues, and his compilation of scholarship on each subject, has resulted in not only a universally trusted authoritative source, but also the starting point for the framing of continuing discussions in the field. So, in addition to being the most important pedagogic element to teaching criminal law across the United States, the book garners about 75 citations each year in law journals and is the uncited starting point for countless other pieces of research. Over the years, Joshua has wisely resisted the temptation to tinker with the sublime and been mindful of the virtues of a reasonably thin volume, so each new edition, which adds the latest issues and scholarship, is an artful update of its worthy predecessor.

This book is the tax entry in West’s new interactive casebook series, in which there is an on-line version of the book that allows direct links to Black’s Law Dictionary and Westlaw and allows for highlighting and note-taking in the e-book, and literally hundreds of links to reify the materials — not just links to the full cases, but to videos, photos, audio clips and so forth. Donald and his co-author frame their book as a “supplement” to the Internal Revenue Code and the corresponding Treasury regulations that are the primary text. “Supplement” is certainly a modest label for this teaching text which not only gives a clear structure and “way in” to learning about the Code, but is also replete with problems, self-assessment questions and other tools of contemporary pedagogy.

The book also brings learning theory to bear in its somewhat unusual structure. Part I, “A First Glance,” goes through the Code, introducing the basics such as progressivity, marginal rates, gross income, deductions and credits. Part II: “A Closer Look” goes back through the system a second time, dealing with some tougher concepts, such as the meaning of “gross income” and the treatment of certain important costs as personal, business, or investment activities. Part III: “A Hard Stare” takes students on a third tour through the system, looking in detail at such principles as timing, personal deductions and other advanced topics. As a result, students not only move from the basic to the advanced, but in doing so get three trips through the material.

Book Chapter

John B. Quigley, The International Criminal Court and the Gaza War, in XVI THE PALESTINE YEARBOOK OF INTERNATIONAL LAW (Martinus Nijhoff 2011).

The Palestine Yearbook is published in cooperation with Birzeit University Institute of Law in order “to contribute to the modernization of Palestinian legal structures both at the academic and professional levels.” Birzeit is the oldest Palestinian university, and the Yearbook has been published for about twenty years, since the start of the Institute of Law. This volume focuses on the UN Fact-Finding Mission led by Richard Goldstone to investigate the 2008-09 Gaza War and the aftermath of the Goldstone report.

John’s chapter considers the possible jurisdiction of the International Criminal Court over charges of war crimes in the Gaza hostilities. In January 2009, the Minister of Justice of the Palestinian National Authority filed a document granting the ICC jurisdiction over “acts committed on the territory of Palestine since 1 July 2002.” There has been much debate on this issue, and John has been a leading United States proponent of the pro-jurisdiction view. The chapter details the legal provisions involved and the different arguments that have been made on both sides. John’s conclusion in favor of jurisdiction rests on the alternative grounds that Palestine is a state (both in general or, more narrowly, for the purposes of the ICC jurisdictional provision) and particular provisions of the Rome Statute of the International Criminal Court, the treaty which sets the particulars of the ICC’s jurisdiction.

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